The employee, sixty-five years old, began employment with employer's grocery store in 1994. After a training period, she began working at the meat counter in the store's deli department. The employee worked continuously in the same position for the entire course of her employment. She remained employed by employer at the time of hearing.
The employee's duties include "cut[ting] meat and cheese, wrapping, pricing, serving your customers, unpacking your loads, put[ing] your loads away, rotating product, making sure we have no waste [and] presentation." She is physically engaged in cutting meat and cheese for six to seven hours a day. All product is machine-sliced, and all machines in employer's deli department are right-handed. The employee's job involves moving her right arm forward and backwards all day long to cut slices of meat and cheese. She slices approximately three to four hundred slices each day to accommodate customers' varied preferences. The employee's job duties also involve lifting approximately forty to fifty-pound boxes of meat and cheese to place them on racks that vary in height from knee-high, breast high to an upper tier. She explained, "[O]n the highest rack you would have to actually lift the box up above your shoulders or up above your head in order to ... place the box in order to take the box down."
The employee first noticed a problem with her shoulder on July 1, 2014, during a busy meat sale day. She was cutting meat all day long to keep up with customers' demand for employer's sale-priced product. A six-wheeled tram arrived in employee's department stacked full of hams, turkeys and other product. In the process of trying to pull a ham box off the tram the employee felt pain in her shoulder. Assuming the pain was due to overexertion, she continued to perform her regular duties, including meat cutting. As the workday progressed, she noticed that her arm was getting weaker.
On July 2, 2014, the employee sought treatment at Premier Care. Dr. Kutnik's notes documenting the employee's office visit on that date state, in pertinent part:
> Ms. Dockery is a 61-year-old right hand-dominant female who has noted an inability since last week to really lift the right arm to any significant degree. The patient thinks she may have slept on it funny. She is really unable to lift it up out of the plane of the scapula. She denies any antecedent trauma or change in activity. She denies any numbness or tingling specifically to the hand or fingers. Of note, the patient has had a previous three-level fusion to the cervical spine.
1 Transcript, 7-8.
2 Id. 11.
3 Transcript, 71.
Injury No.: 14-049534
Employee: Amber Dockery
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The employee testified that when Dr. Kutnik examined her on July 2, 2014, "[W]e talked about ... the injury on my arm and how I felt and he looked into it." She explained she considers trauma "something really tragic" as distinguished from a pulling activity that left her with a feeling that something was wrong with her arm.
Dr. Kutnik ordered X-rays of the employee's right shoulder, which showed a right shoulder massive rotator cuff tear. At a follow up visit on July 10, 2014, subsequent to an MRI of the employee's right shoulder, Dr. Kutnik referred her to Dr. Sigmund for likely surgical intervention. That day, the employee told her manager "[T]hat I was pulling on a box and I had went to the doctor and I found out that I was injured." Employer's claims manager filed a Report of Injury dated July 10, 2014.
On July 24, 2014, the employer sent employee to Dr. Michael Nogalski for treatment. Dr. Nogalski diagnosed a right shoulder strain, chronic rotator cuff tear with degenerative disease glenohumeral joint and os acromiale. He authorized the employee to continue full duty work and prescribed physical therapy. The employee underwent six or seven physical therapy treatments, which provided little if any relief. After a follow up visit on August 13, 2014, Dr. Nogalski reiterated his opinion that the employee could work at a level of full duty and discharged her from his care.
On January 21, 2015, Dr. Robert Sigmund performed a right shoulder arthroscopy with retracted rotator cuff repair with biceps tendodesis as well as a decompression. After a course of physical therapy, Dr. Sigmund released the employee to return to work on April 18, 2015.
Since Dr. Sigmund's surgery, the employee has lost arm strength and experiences some cramping. However, she testified her shoulder works very well. She can still do her job, though she requires assistance from coworkers in order to lift anything overhead. Regarding her right arm, she stated, "I can do things with it. [For example] I can hold my coffee without spilling and I can lift smaller things at work."
Medical Evidence
Dr. Michael Nogalski
Employer produced the report and deposition of orthopedic surgeon Dr. Michael Nogalski. On July 24, 2014, Dr. Nogalski diagnosed the employee's condition as right shoulder strain, chronic rotator cuff tear with degenerative disease glenohumeral joint and os acromiale. He explained his findings as follows:
4 Id. 30.
5 Id.
6 Id. 16.
7 Employer/Insurer's Exhibit A, Transcript, 206.
8 Transcript, 59.
9 Id. 22.
Impry No.: 14-049534
Employee: Amber Dockery
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Her os acromiale is old and congenital. This does indeed predispose to rotator cuff tears. Her rotator cuff tear condition is old and has apparently been well compensated for over years of time. Her degenerative disease of the shoulder is possibly an isolated issue, but may relate to some cuff tear arthropathy in this setting. This also is an old condition.
In sum total, [i]t appears she sustained a strain to the shoulder and has fairly significant preexisting issues. Most of her findings suggest she has more of a glenohumeral issue than a neck problem, but she does have some symptoms that suggest the neck has a role in some of the generalized shoulder girdle and upper shoulder girdle problems.10
Dr. Nogalski considered physical therapy the employee's best option to minimize any effects of a shoulder strain and "help optimize the shoulder and get it back to solid function."11 He identified no findings that suggested an operation or surgery and recommended that the employee continue working full duty.
In a follow-up visit on August 13, 2014, Dr. Nogalski acknowledged that the employee's condition had not improved since she went to physical therapy. He noted she continued to suffer from diffuse symptoms and conceded that the employee "may well have sustained a strain to the shoulder."12 He recommended that the employee seek reevaluation by Dr. Shitut, the surgeon who performed her neck surgery for "probably cervical mediated symptoms."13 At this time, Dr. Nogalski reiterated his opinion that the prevailing factor for her current complaints was preexisting issues within the shoulder with possible overlay of some cervical issues. He again recommended that the employee work at a level of full duty and suggested she continue physical therapy exercises at home.
In his June 12, 2017, deposition, Dr. Nogalski acknowledged that the employee demonstrated less strength after the physical therapy he prescribed than before. However, he opined that her chronic conditions remained unchanged and stated he was unable to identify anything acute that a surgical procedure would help.
In his deposition, Dr. Nogalski further opined that the employee's job duties at Dierbergs did not place her at a reasonable risk of exposure for a rotator cuff tear or shoulder disorder. He testified that the employee's job duties did not represent the prevailing factor causing the employee's rotator-cuff tendinopathy, chronic tear, and severe biceps tendinitis and were not the prevailing factor necessitating treatment of the employee's shoulder or surgical intervention.
Dr. Nogalski had no knowledge of the weight of the slicing machine the employee used at work, how much force she was required to exert to push and pull the slicer for each cut, or the number of slices of meat and cheese the employee cut on a daily basis. He
10 Id. 93-94.
11 Transcript, 94.
12 Id. 97.
13 Id.
Injury No.: 14-049534
Employee: Amber Dockery
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did not know how much total weight the employee lifted at work on a daily basis or how long she had worked in her position.
**Dr. Bruce Schlafly**
Dr. Bruce Schlafly examined the employee on February 2, 2016. Dr. Schlafly's April 26, 2017, deposition is included in the record.
Dr. Schlafly's primary diagnosis of the employee was torn rotator cuff of the right shoulder treated with rotator cuff repair, along with severe biceps tendonitis that required biceps tendon tenodesis at the shoulder.
He noted that the physical therapy ordered by Dr. Nogalski did not help the employee. He further noted that on November 14, 2014, Dr. Sigmund recommended surgery based on an MRI scan showing